The Lawyer's Art

3 Jul

When I tell people what I do for a living, one of the common responses is “I should have been a lawyer; I like to argue.”  I think two things when I hear this: 1) How do I get away from this person, and 2) it is probably a good thing that this person is not a lawyer.  For the lawyer’s art actually has little in common with ‘arguing’ as the word is used in modern culture, and lawyers who spend all of their time arguing succeed, if at all, in spite of themselves.

Arguing in the modern sense of the word is best understood with reference to talk shows and reality television.  It typically involves two or more people taking opposite sides of a hot-button issue, each one putting forth reasons for the superiority of his or her position and/or attacking the points put forth by the opposing side.  It is loud, polarized, endless and unstructured.  And, more than anything, it is confrontational: nothing helps ratings like putting people with opposing views on the same stage and letting them argue back and forth about the issue of the day.

The resulting cacophony of voices seldom resolves the issues presented for discussion.  This, of course, is not surprising.  But what is a little surprising, and what is often overlooked, is that in this form of ‘arguing’ the opposing sides are rarely talking directly with each other about the issue.  To do that, they would need to dig into and sift through the facts of the event that triggered their discussion, agree on the facts not in dispute, and take a careful look at the controversial facts before moving to a discussion of what to do about those facts.

In a pervasive but subtle flaw in reasoning, those engaged in ‘arguing’ typically use the facts of the day – whatever they happen to be – as a pretext for stating their opinion about some larger issue.  For example, in ‘arguing’ about the issue of bullying among our youth, what is missing is an agreed upon definition of what constitutes bullying.  Absent that, what we have are people arguing that bullying either is or is not a pervasive problem that needs to be addressed and how to address it, without either side really knowing what the other side’s notion of bullying actually is.  The plain fact of the matter is, it is impossible to have an intelligent discussion about bullying, because that term, even on any agreed upon definition, is too broad to admit of a single, consistent position by even the most intelligent observer.  Arguing about it, then, is meaningless.  Unfortunately, it is this kind of ‘arguing’ that reinforces opinions, which in turn leads to policies based more on prejudices than realities.

The lawyer’s art is an altogether different animal.  Sooner or later the better lawyers internalize a very sobering dynamic: every argument they make is ultimately judged by some finder of fact or law who has the power to determine the outcome of the case.  Said differently, lawyers are invariably supplicants: they never have the power to decide the outcome of anything directly.  That simply is not their role.  Those who get to decide – the judge or the jury – do not have to argue with anybody.  They listen to arguments, and then make a decision.

Those finders of fact or law have what I would term direct power.  They are like the biggest kid in the schoolyard.  What they goes, period.  Lawyers, on the other hand, must persuade the person with direct power to do what they want them to do.  This, most fundamentally, is an art of seduction, the attempt of a party without power to gain it by coopting it, by use of some means of persuasion, from another party.  (See The Free Dictionary: seduce – 3. a. To entice or beguile into a desired state or position. b. To win over; attract.)  Whether they admit it or not, all of the high-powered lawyers we hear so much about truly have no power at all, save what they can prevail upon some other party to do for them or their client.

It seems to me that ‘arguing’ is essentially different from the lawyer’s art because those who ‘argue’ do not consciously acknowledge that they are not in a position to decide the issue directly.  They inevitably ‘argue at’ the person taking the opposite viewpoint, rather than asking – asking – the person with the real power to do something that they have artfully articulated.  As a result, they fail to develop the essential art of persuasion: understanding the other person’s point of view first, and then moving his point of view from there to the one desired.  This necessitates coming out of one’s own position and acknowledging where the other person is coming from.  Most importantly, it requires even the most rabid advocate of a position or cause to reorient himself to a sobering reality: that those who use words to gain power do so, by definition, from a position of weakness.

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The Lawyer’s Art

3 Jul

When I tell people what I do for a living, one of the common responses is “I should have been a lawyer; I like to argue.”  I think two things when I hear this: 1) How do I get away from this person, and 2) it is probably a good thing that this person is not a lawyer.  For the lawyer’s art actually has little in common with ‘arguing’ as the word is used in modern culture, and lawyers who spend all of their time arguing succeed, if at all, in spite of themselves.

Arguing in the modern sense of the word is best understood with reference to talk shows and reality television.  It typically involves two or more people taking opposite sides of a hot-button issue, each one putting forth reasons for the superiority of his or her position and/or attacking the points put forth by the opposing side.  It is loud, polarized, endless and unstructured.  And, more than anything, it is confrontational: nothing helps ratings like putting people with opposing views on the same stage and letting them argue back and forth about the issue of the day.

The resulting cacophony of voices seldom resolves the issues presented for discussion.  This, of course, is not surprising.  But what is a little surprising, and what is often overlooked, is that in this form of ‘arguing’ the opposing sides are rarely talking directly with each other about the issue.  To do that, they would need to dig into and sift through the facts of the event that triggered their discussion, agree on the facts not in dispute, and take a careful look at the controversial facts before moving to a discussion of what to do about those facts.

In a pervasive but subtle flaw in reasoning, those engaged in ‘arguing’ typically use the facts of the day – whatever they happen to be – as a pretext for stating their opinion about some larger issue.  For example, in ‘arguing’ about the issue of bullying among our youth, what is missing is an agreed upon definition of what constitutes bullying.  Absent that, what we have are people arguing that bullying either is or is not a pervasive problem that needs to be addressed and how to address it, without either side really knowing what the other side’s notion of bullying actually is.  The plain fact of the matter is, it is impossible to have an intelligent discussion about bullying, because that term, even on any agreed upon definition, is too broad to admit of a single, consistent position by even the most intelligent observer.  Arguing about it, then, is meaningless.  Unfortunately, it is this kind of ‘arguing’ that reinforces opinions, which in turn leads to policies based more on prejudices than realities.

The lawyer’s art is an altogether different animal.  Sooner or later the better lawyers internalize a very sobering dynamic: every argument they make is ultimately judged by some finder of fact or law who has the power to determine the outcome of the case.  Said differently, lawyers are invariably supplicants: they never have the power to decide the outcome of anything directly.  That simply is not their role.  Those who get to decide – the judge or the jury – do not have to argue with anybody.  They listen to arguments, and then make a decision.

Those finders of fact or law have what I would term direct power.  They are like the biggest kid in the schoolyard.  What they goes, period.  Lawyers, on the other hand, must persuade the person with direct power to do what they want them to do.  This, most fundamentally, is an art of seduction, the attempt of a party without power to gain it by coopting it, by use of some means of persuasion, from another party.  (See The Free Dictionary: seduce – 3. a. To entice or beguile into a desired state or position. b. To win over; attract.)  Whether they admit it or not, all of the high-powered lawyers we hear so much about truly have no power at all, save what they can prevail upon some other party to do for them or their client.

It seems to me that ‘arguing’ is essentially different from the lawyer’s art because those who ‘argue’ do not consciously acknowledge that they are not in a position to decide the issue directly.  They inevitably ‘argue at’ the person taking the opposite viewpoint, rather than asking – asking – the person with the real power to do something that they have artfully articulated.  As a result, they fail to develop the essential art of persuasion: understanding the other person’s point of view first, and then moving his point of view from there to the one desired.  This necessitates coming out of one’s own position and acknowledging where the other person is coming from.  Most importantly, it requires even the most rabid advocate of a position or cause to reorient himself to a sobering reality: that those who use words to gain power do so, by definition, from a position of weakness.

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21 Jun

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